November-15-08

Recent Amendments to the Americans With Disabilities Act

Question: We are a 100-employee Massachusetts company and we have been getting bombarded with Human Resources managment firm and law firm marketing materials regarding amendments to the Americans with Disabilities Act. What do we really need to be concerned with?

TGL Response: If you are already compliant with Massachusetts law you have very little with which to be concerned. Recent amendments to the Americans with Disabilities Act (the "ADA") will take effect on January 1, 2009. Many of these amendments were enacted to countermand court decisions construing the scope and applicability of the ADA. Most significantly, in determining whether an employee is "disabled", mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered by the employer. For example, if attempting to determine whether an employee suffering hearing loss falls within the ADA's protection as a "disabled" employee, you should not consider that his or her hearing impairment is corrected by use of a hearing aid. Rather, your focus should be whether the impairment, without corrective devices, medication or other mitigating measures, "substantially limits" a "major life activity". While this presents a dramatic change in federal law, this amendment brings federal law in line with Massachusetts law. Massachusetts' anti-discrimination law - M.G.L. c. 151B - does not allow for the consideration of mitigating measures in determining whether an employee is disabled (or "handicapped" as the term is used under Massachusetts law). Therefore, if you have been complying with Massachusetts disability discrimination laws, you should be fine. The ADA amendments also, among other things, expanded the non-exhaustive list of "major life acitivities" and clarify that an impairment that is "episodic" or "in remission" is a disability if it would "substantially limit a major life activity" when active. Disability discrimination laws are complex, encompass limitless possible scenarios and are therefore danger zones for employers. Please contact Tocci, Goss & Lee, PC or your employment counsel if faced with a concerning disability discrimination matter.